This Agreement is entered into by and between GATES IT SOLUTION SDN BHD(200901021695 (864792-T)) having its registered office at D-8-3A, Menara SUEZCAP 1, KL Gateway, 59200 Kuala Lumpur (“Company”); and the party specified in the Merchant's Information ("Merchant").

THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION
   1. In this Agreement, the following definitions apply:

      "Agreement" means this Merchant Agreement between the Company and the Merchant, including any other documents incorporated by reference;

      "Business Day" means any day (excluding Saturdays, Sundays and public holidays) on which the Company is open for business;

      "Merchant's Information" means any information that the Merchant provides to the Company or other users in the registration, payment process, stores or other features of the Services or any other information provided by the Merchant in connection with the Services;

      "Parties" mean the Company and the Merchant, whereas "Party" means any of them;

      "Payment App" means the application(s) developed by the Company to provide the Services, known as GATESPay App or such other name as the Company may ascribe;

      "Services" means the services provided by the Company through an online platform where the Payment App and/or such other apps or online services are provided to the Merchant by the Company;

      "Service Fee" means the charges, fees and prices payable by the Merchant to the Company, as well as any discount rate as fee deductible by and payable to the Company, in consideration for the provision of the Services at a rate as specified by the Company;

   2. In this Agreement, the following applies unless the contrary intention appears or the context requires otherwise:
      1. Words bearing singular in this Agreement shall include the plural and vice versa;
      2. Headings are for ease of reference only and do not affect the interpretation or meaning of this Agreement;
      3. A reference to a clause is a reference to a clause of this Agreement;
      4. A reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
      5. A reference to a party includes its executors, administrators, successors and permitted assigns;
      6. Words like "including", "particularly", "such as" and similar expressions are not used as, nor are intended to be, interpreted as words of limitation.
   3. No rule of construction will apply in the interpretation of this Agreement to the disadvantage of one party on the basis that such party put forward or drafted this Agreement or any provision of this Agreement.
2. COMMENCEMENT
   1. The Merchant desires to use the Payment App for online payment (which may include credit/debit card, e-wallet and online banking) with respect to, among others, payment of goods and/or services to and/or from customers and/or payment to and from third parties, which is made available by the Company . The Merchant agrees that any payment partners which may be added to or removed from the Services will be deemed accepted by the Merchant by virtue of this Agreement.
   2. The Merchant shall be entitled to use the Services only upon completion of the required application form which has been approved by the Company. The Merchant shall warrant that all information furnished to the Company are true and accurate. The Merchant shall continue to update its information to the Company and/or provide such necessary or further information as may be requested by the Company.
3. NATURE OF SERVICES
   1. The Merchant agrees and the Company shall deduct the Service Fee according to Clause 4 and expenses incurred (if any) before remitting any payments to the Merchant’s account according to the payment method determined by the Company.
   2. The Company shall create one (1) Merchant ID i.e., the user account for the Merchant to use the Payment App. If it appears that the Merchant has more than one Merchant ID for whatever reason, the Company is entitled to cancel all other Merchant ID(s) and to retain only one of them for the Merchant.
   3. In connection with the Services, the Company will provide the Merchant with a hardware device known as the GATESTag. The Company will be responsible for the routine maintenance of the device (such as battery replacement and configuration). However, the Merchant will be liable for any damage, loss or vandalism caused to the device howsoever, including a penalty of RM 150.
   4. This Agreement shall also be read together with the General Terms & Conditions and Privacy Policy, which may be revised and amended from time to time by the Company. In the event of any conflicting provisions, the terms in this Agreement shall prevail.
4. SERVICE FEE
   1. The Merchant agrees to make payment of the Service Fee which shall be in Malaysia Ringgit (MYR) unless otherwise agreed.
   2. The Merchant agrees that the Company is entitled to set-off any amount received which is to be transferred to the Merchant with the amount of the Service Fee including expenses or any other fees that the Merchant is required to pay or reimburse the Company hereunder.
   3. The Merchant also agrees that under no circumstances it has right to set-off or to withhold payments of the Service Fee to the Company, in connection with any amounts due to the Merchant by the Company.
   4. During the period of this Agreement, the Company reserves the right to amend the rate of the Service Fee by giving at least thirty (30) days' advance notice to the Merchant and such notice shall be deemed an integral part of this Agreement.
5. REPRESENTATIONS & WARRANTIES
   1. The Merchant represents and warrants as follows:
      1. It has carefully considered and is cognizant of risks of electronic transactions and accepts such risks including any loss or damage incurred from such electronic transactions or fraud or cybersecurity risks arising;
      2. It acknowledges that the Company acts solely as a passive conduit for the online distribution and publication of the Merchant's Information. The Company may use any of the Merchant's Information for any other purposes related to the provision of the Services pursuant to the terms of this Agreement;
      3. It is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that the Merchant is not sending or receiving funds to or from an illegal source;
      4. The Merchant's activities (including its payment and receipt of payments) that are transacted through the Payment App do not violate any law, statute, ordinance, contract or regulation;
      5. It agrees to provide full cooperation for and consents to the Company to conduct any checks on its business, its directors via any official medium such as a credit bureau of Bank Negara Malaysia;
      6. The information provided to the Company in connection with the Merchant’s application for the provision of the Services is correct and that no information has been withheld whether deliberately or inadvertently which, if provided, could have materially affected the Company’s decision to enter into this Agreement.
   2. In the event of any breach of the above representations and warranties, the Merchant agrees that the Company is entitled to terminate this Agreement immediately and the Merchant shall be responsible for all damages incurred by the Company, including any loss occurred as a result of the Merchant's non-performance of this Clause 5.
   3. The Company shall use its best reasonable efforts to ensure that requests for electronic debits and credits are processed in a timely manner; however, the Company makes no representations or warranties, whether expressed or implied, regarding the amount of time needed or the speed to complete each processing of such transactions as the payment instruments and systems are largely dependent upon many factors which may be outside its control, such as delays in the banking system or the local or international mail service.
   4. The Company disclaims all warranties, express or implied, written or oral, including warranties:
      1. of merchantability and/or fitness for a particular purpose; and
      2. that the Payment App will be available at all times and that it would be uninterrupted and virus/malware/error free.
6. HOLDING OVER

   The Merchant agrees with the following:

   1. In the case that there is suspicion of any fraudulent transaction or a reasonable suspicion cause regarding the dishonest use in connection with the Payment App, the Company reserves the right to retain the sum and no pay-out of any sum should take place. The amount being held back will be kept for one hundred and eighty (180) days or until the dispute is resolved, whichever is later.
   2. In the event that the transaction is disputed by a customer successfully against the Merchant, the Merchant agrees to release the sum (only the charge-back amount) to the customer. In the event the customer fails to dispute a payment successfully, the amount will be released back to the Merchant within ninety (90) days.
7. LIMITATION OF LIABILITY
   1. The Company may undertake scheduled maintenance and/or emergency maintenance of the Payment App and/or such other apps made available to the Merchant from time to time and the Company will use reasonable endeavour to notify the Merchant of the same. The Company shall not be liable for any losses incurred by the Merchant arising from the Company's performance of such maintenance.
   2. The Parties agree that the Company shall not be held liable for any business expense, machine downtime or damages caused by any deficiency, defect or error in the Payment App or malfunction thereof and in relation to such defect. Further, in no event shall the Company be liable to the Merchant for any consequential or incidental damages, including loss of profits, loss of turnover and/or loss of data, business interruption, downtime costs whether or not such loss is reasonably foreseeable or such damages have been previously advised thereof.
   3. Notwithstanding the above clauses, in no event shall the total liability of Company to the Merchant arising from the provision of the Services howsoever exceed the total sum which the Company had received from the Merchant for the past 12 months before such liability arises.
   4. The Parties agree that the Company shall not be held liable in any manner whatsoever in connection with matters set out in Clause 6 and/or in the event there is a dispute between the Merchant and any of its customers, unless it can be proven by the Merchant that such dispute arose, directly, from the negligence, fraudulent act, default or breach by the Company in the provision of the Services under this Agreement. For the avoidance of doubt, the Merchant shall in any event solely manage all of its customers and promptly resolve all issues that arise with its customers.
   5. The Merchant shall indemnify and hold the Company, its officers, directors and employees harmless from any claim or demand made or incurred by any third party due to or arising from the Merchant's breach of any of terms of this Agreement and/or any provisions of law in connection with this Agreement.
8. DISPUTES
   1. In case there are disputes of any transaction in connection with the Services as raised by the Merchant, the Company shall use reasonable endeavour to promptly investigate and respond in accordance with Clause 8.2.
   2. A service level commitment for purpose of resolving the dispute raised shall be as follows:
      1. The Company shall use its best reasonable effort to provide initial response to any general questions and queries within forty-eight (48) hours;
      2. For any specific transaction disputes and chargeback queries, the Company shall use its best reasonable effort to resolve such dispute within fourteen (14) Business Days from the date of the initial response from the Company, provided that the Merchant responds within a timeframe given and gives its full cooperation.
   3. Procedures for chargeback dispute (not applicable for e-wallet transaction):
      1. The chargeback process will be initiated by the customer through the issuer and to the Merchant’s acquiring bank. If the transaction is deemed valid by the Merchant, the Merchant will be required to submit additional supporting documents or information to the Company. The issuer then decides, based on the information, to accept or decline the chargeback. As the issuer represents the cardholder (i.e., customer) in the process of chargeback, and the Company merely acts as an acquirer which enables the Merchant to accept payments via the Payment App, the Company shall only be the intermediary between the issuer and the Merchant and shall hold no legal and financial responsibility in a chargeback dispute. The Merchant acknowledges and agrees that it shall be fully and solely accountable for liaising with the issuer and shall compensate the Company for any assistance or liability it has incurred as a result of any claims made by any other party.
      2. If disputes are unresolved between customer and the Merchant through the chargeback process, either party may resubmit chargeback with additional information from either party. The Merchant agrees that this is a mandatory step prior to proceeding to court for resolution.
      3. In the event of failure of this second resubmission, the aggrieved party may bring such dispute to the court. In such case, the Merchant hereby acknowledges that the Company shall not be the party involved or be brought in such proceedings and shall strictly be between Merchant and the customer. The Merchant shall indemnify the Company in the event that the Company suffers any loss or damages (including any legal fees and costs) directly or indirectly arising out of its breach of this Clause 8.
   4. For the avoidance of doubt, the provision of the Payment App shall not be subject to any money-back guarantee, warranties, merchantability, suitability for use or other such policy that the Merchant may provide to its customers in respect of the goods and/or services offered. Any such policy shall only be between the Merchant and its customers. The Merchant’s obligation to be liable for the Service Fee shall not in any way be contingent upon such policy or other business practices of the Merchant.
9. EXCLUSION

   The Merchant acknowledges and agrees that in case the Services hereunder have any error or delay or have been temporarily suspended, arising from service connection system or computer system or any relevant system or virus attack or electronic equipment problems and/or force majeure or any causes beyond the Company’s control, the Merchant shall not raise such error to claim any damages against the Company and shall notify the Company immediately of such error. Subsequently, the Company will use its best efforts to solve the problem expeditiously, and the Merchant agrees to fully assist and cooperate with the Company to solve such a problem.

10. TERM AND TERMINATION
    1. This Agreement shall be effective from the date the Company permits the Merchant to use the Payment App in connection with the Services. The Merchant shall give an advance written notice to the Company of not less than ninety (90) days to terminate the Agreement whereas, the Company shall give a notice of thirty (30) days to terminate the Agreement.
    2. 10.2 The Company may terminate this Agreement immediately and cease the Services forthwith including by closing the Merchant’s user account in any one of the following circumstances:
       1. The Merchant uses and/or declares false information;
       2. The Merchant is involved in any prohibited transactions which is either illegal, unlawful or obscene as may be provided in https://www.moha.gov.my/index.php/en/membanteras-pembiayaan-keganasan-2 or any other laws/statutes in Malaysia;
       3. The Merchant is in breach of any provision of the Agreement and where it is a remediable breach, the Merchant does not remedy said breach within fifteen (15) days upon receipt of the relevant notice from the Company;
       4. Either Party is adjudged bankrupt or dies or ceases to exist as a juristic entity or have any other legitimate ground which makes either Party unable to comply with this Agreement.
    3. 10.3 Termination of this Agreement shall not prejudice nor affect the accrued rights or claims and liabilities of the Parties under this Agreement. The provisions of this Agreement, which by their nature and content, are intended expressly or impliedly to continue to have effect notwithstanding the termination of this Agreement shall survive and continue to bind the Parties.
    4. 10.4 Upon termination, the merchant is required to return the GATESTag device to GATES within 7 days. Penalty of RM150.00 will be imposed for failure to return GATESTag device.
11. TAX

    All taxes and other charges imposed or to be imposed by the government or such other competent authorities in respect of the provision of the Payment App shall be borne by the Merchant and the Merchant shall reimburse (if the Company has been charged and has paid on the Merchant’s behalf) and indemnify the Company for the payment of the same in respect of the provision of the Services.

12. CONFIDENTIALITY

    The Parties understand that all documents, information or materials produced or acquired under this Agreement are confidential information and trade secrets. Neither Party is entitled to disclose nor cause to be known by any way of such confidential information and trade secrets to any third party and agrees to properly keep them at any time either during and after the period hereof, except for the disclosure required by a court order or provisions of law, unless, such information is in the public domain at the date of this Agreement, or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement by the Merchant.

13. INTELLECTUAL PROPERTY

    The Company is an owner or a licensee of all intellectual property rights, whether in contents or wording, pictures, signs, logo, trade/service marks, trade name as well as all design works, in all documents and websites of the Company. The Merchant must not exploit the intellectual property rights of the Company or make any advertisement without receiving prior written consent from the Company. The Merchant shall not perform or allow any third party to perform any action that might cause damage to the image, trademark, trade name or other intellectual property rights of the Company.

14. DATA PROTECTION
    1. The Parties shall fully comply with all applicable data protection laws, including the Malaysian Personal Data Protection Act 2010 and all subsidiary legislation, case law, directions, guidelines and standards issued pursuant thereto from time to time.
    2. Where the Company discloses personal data to the Merchant, the Merchant shall:
       1. ensure the implementation of effective administrative, physical, and technical security measures in compliance with Clause 14.1 to protect such personal data;
       2. process such personal data only for purposes relating to the Services and comply strictly with all directions as may be given by the Company;
       3. refrain from disclosing such personal data to any third party, or transfer such personal data to places outside Malaysia, with the prior written consent of the Company;
       4. procure any third party that processes such personal data to agree in writing to the same terms that the Merchant agrees to herein; and
       5. cease to retain such personal data or remove means by which such personal data can be associated with particular individuals, upon the Company's request and/or termination of this Agreement.
    3. Where the Merchant discloses personal data to the Company, the Merchant shall ensure that all necessary consents have been obtained from and all necessary notifications have been provided to individuals whose personal data is disclosed to the Company in respect of such disclosure to and processing by the Company.
    4. The Merchant shall indemnify the Company against all proceedings, costs, expenses, liabilities or damages arising from the Merchant's failure to comply with applicable data protection laws or any other terms under this Clause 14.
15. FORCE MAJEURE

    Neither Party will be liable to the other Party for, or be considered to be in breach of or in default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control (“Force Majeure”), so long as the affected Party uses all commercially reasonable efforts to avoid or remove such causes of non-performance and immediately notifies the other of the Force Majeure event. If either Party is prevented or delayed in the performance of any obligation under this Agreement by events of Force Majeure, the affected Party shall give written notice thereof to the other Party within seven (7) days of the happening of such event, specifying the details constituting Force Majeure and the anticipated period during which such prevention, interruption or delay may continue. Where possible the Parties shall diligently mitigate or remove the effects of Force Majeure event. Either Party upon receipt of the notice of Force Majeure events shall confer promptly with the other and agree upon a course of action to remove or alleviate such effect and shall seek reasonable methods of resuming full performance of its obligations and achieving the objectives under this Agreement. Notwithstanding anything contained herein, this clause shall not affect the duty of the Merchant to make any payment due and payable under this Agreement.

16. REVISION

    The Merchant agrees that the Company reserves the sole right to revise, add to or otherwise vary this Agreement at any time without notice. The most current version of the Agreement can be viewed by clicking on "Merchant Agreement" accessible on the GATESBiz App. Your continued use of the Payment App after the revised version of the Agreement is published shall indicate your acceptance to the revision and you shall be bound by the Agreement as so revised.

17. GOVERNING LAW

    This Agreement is governed by laws of Malaysia.

18. MISCELLANEOUS
    1. The Company is not involved in any contracts made between the Merchant’s customers and the Merchant or in any right and duty among those parties. In case any disputes occur from when the Merchant does not comply with the terms and conditions of contracts made with its customers and/or clients, the Company shall in no event be liable or jointly liable. The Merchant shall be solely responsible for such dispute to its customers and/ or clients.
    2. In no event shall the Company be responsible for intentionally or negligently revealing to any other persons by the Merchant of its and/or its customers’ bank account, e-wallet, credit or debit card, username and password information, or for carelessly keeping of password, or in case that any other person causes to be known such information or in case of dishonesty of the Merchant and/or other person.
    3. The Merchant must not assign or transfer its rights, duties, benefits or claims, in whole or in part, according to this Agreement to any third party without the written consent from the Company. In the event the Merchant receives such consent, the Merchant is still liable to the Company under this Agreement in all respects. The Company is entitled to transfer its rights, duties, benefits or claims, in whole or in part, according to this Agreement to any third party without consent from the Merchant.
    4. Should any provision, condition, term or part of this Agreement be null or invalid, the Parties agree that any of the valid remaining portions hereof shall be deemed separate from such null or invalid parts and shall remain in full force and effect.

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I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE AND ANY REVISION TO THE SAME HEREAFTER ON BEHALF OF THE MERCHANT AS SPECIFIED IN THE MERCHANT'S INFORMATION.

BY CLICKING THE "SIGN UP" BUTTON DURING REGISTRATION, I UNDERSTAND THAT I AM CREATING AN ELECTRONIC SIGNATURE, WHICH I INTEND TO HAVE THE SAME FORCE AND EFFECT AS IF I HAD SIGNED MY NAME MANUALLY.

Last Updated: 1st August 2021